What was Tenancy Tribunal case 4734210 about?

The tribunal order states: Halie Macale and David Macale must pay [The landlord/s] $5,500.44

How much money was awarded in case 4734210?

Previous Order Application 4734210 D…: $20.44 awarded to landlord; Property Damage: $5,500.00 awarded to landlord; Rent Arrears: $1,860.00 awarded to landlord

What type of tenancy dispute was case 4734210?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4734210?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10758462-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4734210 about?

The tribunal order states: Halie Macale and David Macale must pay [The landlord/s] $5,500.44

How much money was awarded in case 4734210?

Previous Order Application 4734210 D…: $20.44 awarded to landlord; Property Damage: $5,500.00 awarded to landlord; Rent Arrears: $1,860.00 awarded to landlord

What type of tenancy dispute was case 4734210?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4734210?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10758462-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4734210 — Property damage

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Order

Claims and awards in Tenancy Tribunal application 4734210 — net $5,500.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 11 April 2024	$1,860.00	Rent arrears to 11 April 2024
Previous order application 4734210 dated 10/04/2024	$20.44	Previous order application 4734210 dated 10/04/2024
Repairs	$5,500.00	Repairs
Net award	$5,500.44
Total payable by Tenant to Landlord	$5,500.44

Halie Macale and David Macale must pay [The landlord/s] $5,500.44 immediately, calculated as shown in table below.

This order incorporates the Tribunal order made on 10 April 2024 under application 4734210.

The Bond Centre is to pay the bond of $1,880.00 ([Bond number suppressed]) to [The landlord/s] immediately.

The landlord’s application for witness costs is dismissed.

Halie Macale and David Macale’s application is dismissed.

Reasons

Both parties attended the hearing. The landlord attended the hearing in person and the tenants attended by telephone. Both tenants were present at the start of the hearing, however Mr Macale vacated the hearing after the landlord’s claim and soon after the tenants claim commenced being heard.

The applications from the landlord and the tenants came in front of me on 10 April 2024 when the tenancy was terminated on the grounds that the tenants caused substantial damage to the premises. The remainder of the landlord’s application and the tenants’ application were adjourned and heard on 10 July 2024.

The landlord originally claimed rent arrears, compensation for damage to the property and lawn mowing. The landlord amended its application prior to the second hearing as follows: a) rent arrears ($1,860.00) b) compensation for damage caused to the property ($5,500.00 based on 10 x insurance excess @$550.00/claim) c) witnesses costs ($4,067.55) d) a claim on the bond e) incorporation of the filing fee awarded in my decision dated 10 April 2024 under application .

The tenants’ application is for compensation and exemplary damages for breach of quiet enjoyment to the extent that they were harassed by the property manager/landlord.

Both parties seek reimbursement of the filing fee. The landlord’s claim:

How much is owed for rent?

The landlord provided rent records which prove the amount owing at the end of the tenancy.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. See sections 40(2)(a) and 49B RTA.

My previous order terminating the tenancy 1 records that the landlord’s inspections established that the amount of damage to the premises had escalated during the tenancy. In December 2023 the landlord estimated damage 1 See my order dated 10 April 2024. had been caused with a remedial cost of around $3,000.00 ;in February 2024 damage was estimated at around $10,000; and in March 2024 damage was estimated at $37,500.

In considering the application to terminate I was satisfied that the landlord had proven the following damage had been caused to the tenancy, notwithstanding I did not find the list was inclusive: •significant damage to gib walls throughout the property to the extent that new gib board is required in some areas as the damage is too great to repair; •damage to eight internal doors to the extent that at least four doors are beyond repair; holes and damage caused to the ceiling tiles; •a broken glass panel in a ranch slider; •the glass in the oven door has been smashed and the warmer drawer dented; •damage to lights, light switches and power points.

[The witness’] evidence 2 was that the estimated cost to repair the damage he saw at the premises on 18 March 2024 was $37,500.00.

After the tenancy ended and the tenants vacated, [The witness] returned to the premises, took further photographs and reported that further damage had occurred to the premises after his initial inspection. [The witness] estimated repair costs for the damage additional to that done to 18 March 2024 at $20,580.47. The extra damage included: •Paint has been spilt on the deck; •Walls with damage that could have been repaired have been further damaged, some beyond repair and require gib to be replaced; •Paint has been spilt on the carpet in the lounge hallway, and both bedrooms; •The kitchen vinyl flooring is marked with what appears to be burn marks; •Curtain rails have been damaged; •The shower room, which previously was not damaged has a hole in one of its walls; • Door handles that were previously in the hot water cupboard are missing and will need to be replaced.

Mrs Macale accepts that she has caused the damage to the premises. [Redacted]. 2 [The witness] is a builder who inspected the damage and estimated the cost of repair

I acknowledge [redacted]. However that does not change that a tenant has specific obligations they owe to the landlord which they are required by law to meet.

Tenants are liable for the cost of repairing damage that is intentional. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1)

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The damage to the premises has been ongoing since at least December 2023. Mr Macale has made various attempts to repair the damage, however Mrs Macale has further damaged those repairs. I find the damage to be intentionally caused.

The landlord/owner advises that initially the insurance company did not accept her claim but that in early July 2024 that agreed to do so on the basis that it considered there were 10 separate damage events/claims and applied 10 excesses to the insurance claim. Each excess, as advised in the tenancy agreement, is $550.00. The landlord’s amended claim for compensation for damage is for $5,500.00, based on 10 excesses.

I am satisfied from the evidence that there were at least 10 events where damage was caused and that the cost to repair the damage is more than the total excesses claimed of $5,500.00. Is the landlord entitled to the costs claimed relating to the witness, [The witness]?

The landlord claims $4,067.55 in costs relating to [The witness’] evidence: Report based on inspection of 18 March 2024 $1,415.07 Attendance at the hearing on 10 April 2024 $593.40 Report based on inspection of 16 April 2024 $1,465.68 Attendance at the hearing on 10 July 2024$593.40

Section 98A and section 102(2) and (3) of the RTA are relevant to the landlord’s claim for costs.

Section 98A states: (1) The Tribunal may order that a witness attending a hearing of the Tribunal (other than a witness attending pursuant to a witness summons) shall be entitled to a sum for that witness’s travelling allowances, travelling expenses, and fees as prescribed by any rules made under section 116. (2) The allowances, travelling expenses, and fees payable to a witness pursuant to subsection (1) shall be pai1d by such party or parties to the proceedings as the Tribunal shall order or, if the Tribunal so decides, shall be met from any appropriation by Parliament for that purpose.

Section 102(1) to (3) states: (1) Except in a case to which any of subsections (2), (4), or (5) apply, the Tribunal shall have no power to award costs to or against any party to proceedings before it. (2) The Tribunal may make an order of a kind referred to in subsection (3) in any of the following cases: a) where, in the opinion of the Tribunal, the proceedings are frivolous or vexatious or ought not to have been brought: b) where any of the parties was represented by counsel: c) where, in the opinion of the Tribunal, the matter in dispute ought reasonably to have been settled before the Tenancy Mediator but that the party against whom the order is to be made refused, without reasonable excuse, to take part in proceedings before a Tenancy Mediator or acted in any such proceedings in a contemptuous or improper manner; d) where any applicant to the Tribunal, after receiving notice of the hearing, fails to attend the hearing without good cause. (3) In any case to which subsection (2) applies, the Tribunal may order a party to pay— a) to the Crown, any 1 or more of the following: i. the reasonable costs of the Tribunal hearing: ii. the fees and expenses of any witness that have been paid or are payable by the Crown: iii. the reasonable fees and expenses of any Tenancy Mediator in relation to the preparation of a report under section 99: iv. the reasonable fees and expenses of any valuer in relation to the preparation of a report under section 100; or b) to another party, the reasonable costs of that other party in connection with the proceedings.

The awarding of witness expenses under s 98A is discretionary. I am not satisfied that this is an appropriate case to award witness expenses for the following reasons.

The tenancy premises are in [Town]. [The witness] lives some 209 kilometres away; the return trip being 418 kilometres. He inspected the premises twice.

The first inspection was to provide evidence that the property had been substantially damaged in support of the landlord’s application for termination. Given how clearly evident it was that substantial damage had occurred, photographs of the damage would have satisfied the landlord’s required onus of proof in relation to the termination claim without the repair costs being estimated.

An adjudicator determining the matter can also take into account judicial notice (see s97(5) RTA), which means that the Adjudicator can consider the amounts usually seen by the Tribunal for similar types of claims.

In the event an estimated cost of the damage was needed to support the termination application, the landlord/owner could have used a local [Town] based builder to provide evidence of those costs at far less cost than is being claimed. I am not persuaded that [The witness’] evidence is any more persuasive than a local builder’s evidence would be. This is not a situation where an independent builder’s evidence was necessary. Likewise, there is no reason that I have been made aware of as to why the property manager could not have taken photographs to support the termination application.

[The witness] returned to the property to photograph and estimated the repair costs of the further damage caused after his initial inspection. At the end of the first hearing I checked what reasonable time frame the landlord needed to know what repair costs would be incurred and amend its claim for compensation. Three months was advised as sufficient time. At the second hearing I was told the repairs were almost complete. However the actual costs incurred, rather than [The witness’] estimated costs, were not provided to the Tribunal. [The witness] did not undertake any of the repairs; they were done by local [Town] builders and associated trades.

An estimate does not prove what the loss to the landlord actually is. That evidence is best proven by providing the invoices for the work that has actually been done and charged. Had that evidence been provided it would have greater weight that [The witness’] estimates and would not have borne any of the costs [The witness’] evidence has.

In relation to [The witness’] attendances in person at [Event location suppressed], he could have given evidence by telephone. However no such request was made by the landlord.

Further, as set out in section 102, the Tribunal has limited power to award costs generally. Apart from the provision for the discretionary witness costs in s 98A, this is not a matter where the Tribunal can award costs as none of the exceptions set out in s 102 apply.

The Tribunal cannot award costs except where the exceptions in s.102(2) apply. Those exceptions do not apply here. Incorporation of the filing fee awarded earlier

On 10 April 2024 the Tribunal made an order relating to this tenancy, for reimbursement of the application fee ($20.44). The previous order is incorporated into this order for enforcement purposes. This order was made under the same application, therefore no further filing fee was paid or is awarded to the landlord. The tenant’s claim: Has the tenants’ right to quite enjoyment been breached? Have they been harassed?

Section 38(1) of the RTA confirms that a tenant “ shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”. Section 38(2) further provides that a landlord is not to cause or permit any interference with the reasonable peace, comfort or privacy of a tenant.

Effectively section 38 imposes a duty on the landlord not to do anything to interrupt the tenant’s use of the premises and preserves the tenant’s right not to have the quality of the tenancy significantly impaired by actions of the landlord or their agent/s 3 .

The RTA further confirms that contravention of s38(2) in circumstances that amount to harassment of the tenant, it is deemed to be an unlawful act for which exemplary damages can be awarded of up to $2,000.00 under section 109 RTA.

“Harassment” is not defined in the RTA however the District Court in MacDonald v Dodds 4 said that the dictionary definition is the appropriate meaning for “harassment” under the RTA. The Court adopted the Oxford dictionary definition which defines harassment as “to trouble, worry or distress”, “to wear out, tire or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person/s.

In the Concise Oxford dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”.

The tenants claim their quiet enjoyment was breached and they were harassed as: a) they received constant emails from the property manager about rent arrears. The amount they were advised they owed in rent kept changing, and it was not explained to them how their rent payments got behind or by what amount; b) they received constant notices from the landlord, including: i.complaints that they were annoying others in the neighbourhood, ii.anti-social behaviour notices about their behaviour. [Redacted]. iii.14-day notices, including for removal of an unregistered vehicle that was at the property, and that the lawns required mowing. The tenant said there were many 14-day notices for a variety of reasons given to them. 3 The definition of “landlord” in section 2, RTA includes “an agent of the landlord” 4 CIV 2009-019-1524, DC Hamilton 26 February 2010 c) the property manager contacted Mr Macale about Mrs Macale’s behaviour which Mrs Macale says caused arguments between them d) there were constant inspections at the property, including a property inspection a couple of days before Christmas. Following that inspection they were given a 14 day notice in January to mow the lawns. e) they were given less than 48 hours’ notice of a property inspection in September 2023 after complaints that Mrs Macale had been seen smoking drugs at the property. The property manager would turn up to the property when they were not there; and tradespeople would turn up without them being given proper notice. f) maintenance issues were raised with the property manager but work required was not done. g) it was their view that the property manager was attempting to end their tenancy soon after the tenancy started, even though the property manager had suggested they move there from a property they had been renting in [previous address]. Mrs Macale said they were forced to move into the property and told if they didn’t move they would be “kicked out” of the [previous address] property.

In any claim in front of the Tribunal the applicant is required to establish their claim to the civil law standard of proof, being the balance of probabilities.

After hearing both the property manager’s and the tenants submissions and evidence, I am not persuaded that the tenants have established that their right to quiet enjoyment was breached or that they were harassed by the property manager/landlord.

I am satisfied the property manager took actions that were necessary in her role as an agent for the landlord to make the tenants aware they were breaching obligations they had as tenants. I find the 14-day notices and anti-social behaviour notices issued by the property manager related to breaches by the tenants and were given so that the tenants were aware of the breaches and had the opportunity to remedy.

In particular I find that: a) the tenants were not forced to move into the premises but did so of their own choice. b) the rent arrears were explained to the tenants. I am satisfied the amounts owed varied dependent on when payments were made compared to when rent was due. I note the tenants had wanted the bond to be transferred to this tenancy from the previous one, but at the end of the tenancy there were issues that prevented that from happening. c) in terms of maintenance, I find the tenants have not proven there were any maintenance requests that were not reasonably addressed by the landlord. This included that a new back door was installed, even though there was no evidence supporting the tenants’ assertion that it was leaking. d) the property manager gave the appropriate amount of notice for entry into the property. I am satisfied that the incident referred to by the tenants as being less notice than needed for an inspection of the premises was notice of an entry for maintenance purposes, for which 24 hours can be given. In any event the tenant acknowledged she agreed to the property manager entering. e) the inspections before the first hearing were not unreasonable given the damage that had occurred to the property. Likewise a landlord is not prohibited from carrying our an inspection before Christmas. f) any of the discussions the property manager had with Mr Macale were a less formal method of attempting to address issues that were occurring but were reasonable in the circumstances and carried out to try to remedy the issues and breaches that were occurring. g) My comments set out in paragraph 13 above regarding [redacted] apply equally to the tenants’ application.

As I find the tenants have not proven their claim to the standard required, the claim is dismissed. Suppression:

The landlord has applied for suppression of their name and identifying details of the tenancy premises. The references to the name of the landlord’s witness is also granted. As they have been wholly successful in their claim, suppression is granted.

The tenants’ application for suppression of their name is not granted. The tenants have not been successful in their claim. Having regard to the interests of the parties and to the public interest the Tribunal on its own initiative orders I find the tenants names should not be suppressed, however references to [redacted] are suppressed.

Order

Claims and awards in Tenancy Tribunal application 4734210 — net $5,500.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 11 April 2024	$1,860.00	Rent arrears to 11 April 2024
Previous order application 4734210 dated 10/04/2024	$20.44	Previous order application 4734210 dated 10/04/2024
Repairs	$5,500.00	Repairs
Net award	$5,500.44
Total payable by Tenant to Landlord	$5,500.44